A federal judge in Honolulu will decide next week whether a potential class-action lawsuit against Forest City, the private developer of residential  housing at Marine Corps Base Hawaii in Kaneohe, can go forward.

Forest City Enterprises, based in Cleveland, entered into a private-public partnership with the U.S. Navy in 2004 to increase the amount of on-base military housing, and to allow the military itself to get out of the housing business. Its partnership, Ohana Military Communities LLC, was then awarded a lucrative 50-year contract to renovate or replace thousands of existing homes and apartments at MCBH, and to serve as the leasing agent for the properties over the extended life of the contract.

A Forest City subsidiary then took over management of eight different neighborhoods on the Kaneohe base, as well as other areas serving both Navy and Marine Corps personnel.

The lawsuit alleges the company failed to properly inform military families of potential health dangers posed by contaminated soil under and around the foundations of older buildings which were demolished and replaced between 2006 and the present.

Kaneohe Marine Corps Base

In the distance, Kaneohe Marine Corps Base.

Eric Pape/Civil Beat

According to the lawsuit, soil testing in the old base housing areas was done by sampling hundreds of spots in 2006 and 2007. These tests found several insecticides and pesticides present above environmental “action levels.”

According to the company’s soil studies recently provided to the Department of Health, chemicals found included chlordane, heptachlor, aldrin, dieldrin, and endrin,  formerly used to protect buildings’ foundations against ground termites and other pests. Most are known or probable carcinogens. Contact with contaminated soil, ingestion, or inhalation of chemical residue can cause other health effects. These  products are no longer allowed for general use.

The findings led the contractor conducting the testing to conclude further spot checks wouldn’t be cost effective, because it could be assumed all the housing areas would have similarly contaminated soil, according to the soil management study. However, this information was never conveyed to residents living in the Forest City-managed units, the lawsuit alleges.

The lawsuit was filed on April 3, 2014, in state court by local attorneys Kyle Smith, Terry Revere and Malia Nickison-Beazley, but has subsequently been transferred to Hawaii’s Federal District Court.

The four named plaintiffs in the case are wives of current or former military personnel who lived in the privatized base housing, but the lawsuit seeks to be approved as a class-action on behalf at least 8,632 former and current military service members and their families who have resided in the homes at MCBH since the beginning of 2006.

The lawsuit seeks unspecified damages resulting from breach of contract, fraud, and related offenses for failing to notify residents of health issues related to the pesticide residues. In addition, the lawsuit asks for a study to be done of actual current health risks, for warnings be issued to current and former tenants,  and for new leases to be put on hold until chemical contamination levels are demonstrated to be below accepted safe levels.

Forest City is represented by the law firm of Goodsill Anderson Quinn & Stifel, which points out the company worked with the state Department of Health in developing a Pesticide Soil Management Plan that was approved by DOH. Further, it argues, the lawsuit cites data regarding pesticide levels based on soil testing done before the new residences were built, rather than at the time the plaintiffs actually lived there.  And, it argues, the levels of pesticides now found in the soils cannot be assumed to be dangerous.

Angry moms

Kyle Smith, one of the lawyers representing the marine families, said concerns about health problems in the Forest City neighborhoods began with military moms complaining about sick kids, possibly due to mold issues in older homes, or blowing dust from the demolition and construction of new buildings.

They were comparing notes and using social media to solicit and share information, Smith said. A Facebook page, “MCBH Housing Issues,” and a website, “Military Families Deserve Safe Housing,” spread the word.

“What developed was sort of a community of discontent among military spouses on how Forest City was dealing with issues on the base,” Smith said. “They didn’t know if health problems seen in their kids were a result of dust from the large construction sites next to occupied homes, or mold found in some older homes.”

And then they learned about the pesticide contamination, not from Forest City or the Marine Corps, but from an outside source.

Walter Chun was an environmental compliance officer for Metcalf Construction Company, a Navy contractor working on design and construction of the Kaneohe housing prior to its privatization and transfer to Forest City. When the housing was handed off to Forest City, Chun warned about the soil contamination.

Chun eventually came to feel the problem was two-fold. First, in its environmental analysis, Forest City and its consultants “adjusted” the limits for “safe” levels of the different pesticides, which they said was justified because few residents would remain in contact with the chemical residues for more than six years. This adjustment allowed higher levels of the potentially toxic chemicals to be left in the soil than would otherwise be allowed.

Secondly, Chun learned that after the state Department of Health had signed off on a pesticide soil management plan, there was no oversight to determine whether the work was actually done in accordance with the plan, which called for strict control of “fugitive dust” escaping from contaminated sites, along with the removal of contaminated soil or burial at a safe depth under clean soil or new foundations.  The plan also required Forest City to maintain maps showing exactly where problems had been and where the contaminated dirt ended up, and to make those available on request.

The handbook contains no mention of the extensive soil testing that had confirmed contaminated soil under their homes, and no disclosure of the remedial action that had been promised.

Although testing had confirmed high levels of chemicals in the soil, the Health Department did no follow-up to confirm that remediation efforts had been successful, according to correspondence between DOH and Chun. In a reply to Chun, DOH also said it is now pursuing information from Forest City concerning the cleanup.

“If I lived in base housing, and my landlord came and said, ‘Hey, we decided to expose your kid to 10 times the risk because you’ll only be here for six years,” I’d be pretty upset,” Smith said.

But Forest City didn’t tell its tenants anything, Smith said.

The company didn’t inform residents of the pesticides’ presence, their own soil management plan, or the decision to adjust allowable levels to allow more pesticides to be left in place, the lawsuit alleges.

The handbook prepared by Forest City conveyed only an indirect reference to the problem.

“Although chlordane and other pesticides are no longer used, they may be found in soils under and around housing constructed in both civilian and military communities,” the handbook explained. “Families can safely work and play in their yards; however, we recommend residents use prudent practices by thoroughly washing their hands after direct soil contact and washing all plants and vegetables grown on-site before consuming.”

The handbook contains no mention of the extensive soil testing that had confirmed contaminated soil under their homes, and no disclosure of the remedial action that had been promised.

During this same period, Chun began sending letters to local officials and to Hawaii’s Congressional delegation, challenging the way the soil contamination was being handled. Eventually some of his correspondence made its way into the hands of the marine spouses, and onto social media.

When they again asked the company for official information about the pesticide presence, they hit a corporate and military stone wall, Smith said.

Even after lawyers got involved and again requested documents relating to problems, they got nowhere, Smith said in a telephone interview this week.

“No one knew where it was, or what had been done,” he said. “They (Forest City) basically told us to pound sand.”

Instead, they filed suit seeking millions of dollars in damages and a new level of transparency about past problems and current policies.

But filing of the lawsuit has already prompted some small changes. Forest City registered its own website, yourmcbhhousing.com, “to answer residents’ questions about residual pesticides in the soil located at the Marine Corps family housing at Marine Corps Base Hawaii, Kaneohe Bay.”

Included are “fact sheets” with information about contaminated soil conditions in each of the Forest City neighborhoods.

Although still downplaying any safety risks associated with the pesticides, the company now recommends residents “consider” several steps, including “keeping children or pets from playing in dirt near the foundation of your home,” and not growing edible plants near homes.

And, after being accused in the lawsuit of years of stonewalling in the face of residents’ requests for information, Forest City’s website now says, “We wanted to get information to residents quickly.…”

The hearing on Forest City’s motion to dismiss the lawsuit is scheduled for Thursday, June 26, at 10 a.m. before the Honorable Helen Gillmor in Honolulu’s Federal Court.

 

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.